JUDGMENT DATABASE
I. Section 44, The Evidence Act, 1872
Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.—
Any party to a suit or other proceeding may show that any judgment, order or decree
which is relevant under section 40, 41 or 42 and which has been proved by the adverse
party, was delivered by a Court not competent to deliver it, or was obtained by fraud or
collusion.
1. First judgment
a. Name of the Judgment – Bibi Naseema Khanam v. Bhagwan Prasad Sah and Ors.
b. Citation - (1998) 1 PLJR 679
c. Date of Judgment – 20th February 1998
d. Bench Name – HON’BLE JUSTICE R.N. SAHAY J.
e. Summary
This revision application has been preferred by the defendant (1st set) in a suit for declaration of
title and consequential reliefs against the order of the trial Court dismissing the petitioner’s
application questioning the jurisdiction of the Court on the ground that the suit in question was
barred by res judicata.
In order to decide whether the trial Court has committed an error of jurisdiction as contended by
the learned Counsel for the petitioner, it would be necessary to bring on record the salient facts
of the case. Petitioner Bibi Naseema Khanam, who is defendant 1st set in the present title suit,
had. brought Title partition Suit No. 33/1968 before the Subordinate Judge, Munger claiming
one-sixth share in the suit property. On 19.9.1973 partition suit was decreed ex-parte and no
appeal was preferred against the decree. Some of the defendants including one Sarju Singh, who
had not appeared and contested the suit filed application under Order IX, Rule 13 C.P.C. for
setting aside the ex-parte decree but the application was dismissed. An appeal against that order
was also dismissed. Sarju Singh filed a Civil Revision against the appellate Order before this
Court bearing C.R. No. 1404/83. The revision application filed by Sarju Singh was dismissed by
this Court.
Under Section 44 of the Indian Evidence Act, any party to a suit show that any judgment or
decree which is relevant under Sections 40 41 or 42 of the Act was obtained by fraud or
collusion. That is not the case here.
In Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao v. , suit was filed in 1891 by two
persons claiming five temples at Vellatur to be public temples and praying for removal of the
defendants from the office of Dharmakarta. The main defence was that the temples and lands
were private property and were not covered by Section 18 of the Religious Endowments Act.
The suit was dismissed by the District Judge holding that the temples were private and that the
lands were a private foundation and that Act 20 of 1863 did not apply. Appeal preferred against
the said decree was dismissed by the High Court of Madras. Subsequently, another suit was filed
against the persons who were also the parties in the previous suit, again for a declaration that
some of the properties were subject matter of the previous suit relating to public trust.
This revision application is accordingly allowed and the order of the Subordinate Judge I,
Munger is set aside and he is directed to reconsider the matter afresh within two months of
receipt of this order. The Subordinate Judge will keep in mind that he will deal with only legal
question with regard to res judicata. It is, however, made clear that I have not made any
observation on the merits of the case. No costs.
2. Second judgment
a. Name of the Judgment – Kishan Lal Barwa v. Sharda Saharan & Another.
b. Citation - 2015 (110) ALR 162 (2015 )ILR 1All 218
c. Date of Judgment – 18th February 2015.
d. Bench Name – HON'BLE MR. JUSTICE ASHWANI KUMAR MISHRA
e. Summary
Facts as it emerges from record are that Noida (New Okhala Industries Development Authority)
executed a lease deed of a residential plot no.39, Block-C, Sector- XV, measuring 202.50 sq.
meters, in favour of Ashok Kumar, on 23.5.1981. The defendant-petitioner asserts that a
registered agreement to sell was executed by the lessee Ashok Kumar in favour of the defendant-
petitioner on 7.8.1984, pursuant to which, the defendant-petitioner was put in actual possession
and that a five story-building was constructed by him, which exists on the spot. It further appears
that in respect of the same plot, the plaintiff-respondent asserts that a power of attorney was
executed by the lessee Ashok Kumar in favour of respondent no.2 Ripudman Kumar Saharan on
25.10.1984, on the basis of which, a sale deed of the plot was executed on 25.2.1986 in favour of
his wife Smt. Sharda Saharan, who is plaintiff-respondent no.1 in the present petition.
Sri Manish Singh, learned counsel appearing for the defendant-petitioner, submits that only the
issue, which was examined in the suit was as to whether the plaintiff-respondent was the owner
in possession on the basis of sale deed over the suit property, and no issue with regard to
genuineness of the power of attorney was raised or adjudicated. It is also submitted that though it
was pleaded by the defendant-petitioner in the suit that no power of attorney was executed by
Ashok Kumar and such stand was also taken by Ashok Kumar by filing an affidavit, but this
aspect of the matter was not examined by the civil court on the ground that Ashok Kumar had
not denied the execution of power of attorney by appearing before the civil court. Sri Singh
further submits that subsequently, in criminal proceedings, evidence has been collected in the
form of a fingerprint report submitted by a public officer of the office of Directorate, Fingerprint
Experts, State of U.P., at Lucknow, which clearly establishes that the sale deed in favour of the
plaintiff-respondent was obtained by playing fraud, as no power of attorney was executed on
25.10.1984 in favour of Ripudman Kumar Saharan, and therefore, the decree was inexecutable.
Learned counsel has placed reliance upon section 44 of the Indian Evidence Act to contend that
the judgment and decree obtained by fraud cannot be executed.
In view of the discussions made above, this Court finds that the orders impugned dated
26.2.2014 and 29.5.2014, passed by the courts below, cannot be sustained and are hereby
quashed. The executing court is directed to reconsider the objection under section 47 CPC,
afresh, in light of the observations made above. For such purposes, the executing court will go
into the allegations of fraud on merits, in accordance with law, and after affording opportunity to
both the parties, the plea of fraud would be adjudicated on merits. Since the proceedings have
dragged for the last 13 years, therefore, the objection on merits would be decided forthwith, by
fixing short dates, in accordance with law, without granting any adjournment to either of the
parties, except upon imposition of cost, which shall not be less than Rs. 500/-.
Accordingly, the writ petition stands allowed. There shall be no order as to costs.
Petition allowed.
3. Third judgment
a. Name of the Judgment – Ibne Hasan v. Smt. Hasina Bibi
b. Citation - AIR 1984 All 216
c. Date of Judgment – 31st January 1984.
d. Bench Name – HON'BLE MR. JUSTICE N.D. OJHA
e. Summary
One Haji Mohammad Ibrahim. had three sons--Mohammad Siddiq, Mohammad Yousuf and
Mohammad Ismail. Ibne Hasan, the appellant in this second, appeal, is the son of Mohammad
Ismail, whereas the respondents are the legal representatives of Mohammad Siddiq. Suit No. 911
of 1970 was instituted by Mohammad Siddiq in the' Court of Munsif, Varanasi, alleging that Haji
Mahammad Ibrahim was the owner of house No. D-34/88 (present No. 43/1397) and a portion of
house. No. D-34/85 (present No. 43/1.38) shown in yellow colour in the map attached to the
plaint. While going for Haj pilgrimage, the executed a registered Intzamnama on 11th
September, 1924, providing for the management of his properties in his absence. After return
from Haj, Haji Mohammad Ibrahim resumed possession of his properties and continued to deal
with the same as their owner. Due to family differences, Mohammad Ismail, father of defendant
Ibne Hasan, went away to Calcutta, While Mohammad Ismail was at Calcutta, Custodian,
Evacuee Properties, issued notices treating Mohammad Ismail to be an evacuee and showing the
disputed properties as evacuee properties. Haji Mohammad Ibrahim objected to the notice served
by the Custodian who discharged the same vide his order dated 13th February, 1952. The appeal
filed against the order of the Custodian was also dismissed on 17th....1952. Mohammad Ibrahim
also filed suit No. 126 of ......... seeking declaration that he was the owner of the two houses and
that the Intazamnama dated 11th September 1924, did not confer any ownership, rights on his
son Mohammad Ismail. That suit, after Mohammad Ismail filed a written-statement was decreed
on 11th October, 1952. Thereafter Mohammad Ibrahim gifted the two houses to plaintiff
Mohammad Siddiq by means of a registered gift deed dated 22nd January, 1953, and the donee
obtained possession of the houses as owner thereof. Subsequently Mohammad Ibrahim died on
26th May. 1954, and Mohammad Ismail went away to Pakistan.
One Haji Mohammad Ibrahim. had three sons--Mohammad Siddiq, Mohammad Yousuf and
Mohammad Ismail. Ibne Hasan, the appellant in this second, appeal, is the son of Mohammad
Ismail, whereas the respondents are the legal representatives of Mohammad Siddiq. Suit No. 911
of 1970 was instituted by Mohammad Siddiq in the' Court of Munsif, Varanasi, alleging that Haji
Mahammad Ibrahim was the owner of house No. D-34/88 (present No. 43/1397) and a portion of
house. No. D-34/85 (present No. 43/1.38) shown in yellow colour in the map attached to the
plaint. While going for Haj pilgrimage, the executed a registered Intzamnama on 11th
September, 1924, providing for the management of his properties in his absence. After return
from Haj, Haji Mohammad Ibrahim resumed possession of his properties and continued to deal
with the same as their owner. Due to family differences, Mohammad Ismail, father of defendant
Ibne Hasan, went away to Calcutta, While Mohammad Ismail was at Calcutta, Custodian,
Evacuee Properties, issued notices treating Mohammad Ismail to be an evacuee and showing the
disputed properties as evacuee properties. Haji Mohammad Ibrahim objected to the notice served
by the Custodian who discharged the same vide his order dated 13th February, 1952. The appeal
filed against the order of the Custodian was also dismissed on 17th....1952. Mohammad Ibrahim
also filed suit No. 126 of ......... seeking declaration that he was the owner of the two houses and
that the Intazamnama dated 11th September 1924, did not confer any ownership, rights on his
son Mohammad Ismail. That suit, after Mohammad Ismail filed a written-statement was decreed
on 11th October, 1952. Thereafter Mohammad Ibrahim gifted the two houses to plaintiff
Mohammad Siddiq by means of a registered gift deed dated 22nd January, 1953, and the donee
obtained possession of the houses as owner thereof. Subsequently Mohammad Ibrahim died on
26th May. 1954, and Mohammad Ismail went away to Pakistan. The Custodian of Evacuee
Properly again issued notice dated 28th September, 1954, treating Mohammad Ismail as an
evacuee and the said properties as evacuee properties. On an objection being raised by the
plaintiff the Assistant Custodian, Allahabad accepted his title to the properties and held that
Mohammad Ismail had no concern with the same. In reply, the defendant asserted title to the
property on the basis of an oral gift from his father Mohammad Ismail made some thirteen years
back. The plaintiff; therefore, filed the suit giving rise to this appeal seeking defendant's
ejectment and for recovery of damages for its use and occupation.
II. Section 45, The Evidence Act, 1872
When the Court has to form an opinion upon a point of foreign law or of science, or art,
or as to identity of handwriting, 2 [or finger impressions], the opinions upon that point of
persons specially skilled in such foreign law, science or art, 3 [or in questions as to
identity of handwriting] [or finger impressions] are relevant facts.
1. First judgment
a. Name of the Judgment – Mohinder Singh and Ors. v. State of Himachal Pradesh
b. Citation - Criminal Appeal No. 381 Of 1990
c. Date of Judgment – 2nd May 1996
d. Bench Name – HON'BLE JUSTICE R.L. KHURANA J.
e. Summary
The four Appellants stand convicted vide judgment dated 29-8-1990 by the Special Judge
(Forests), Shimla, for the offence under Section 120B, Indian Penal Code and sentenced to
imprisonment for a period of six months each and also to pay a fine of Rs. 500. In default of
payment of fine, each of the four Appellants has been directed to undergo imprisonment for a
period of two months. Appellant Mohinder Singh has further been convicted under Section 420,
Indian Penal Code and sentenced to undergo imprisonment for a period of two years and to pay a
fine of Rs. 2,000. In default of payment of fine, he has been directed to undergo imprisonment
for a further period of six months. Appellants S.S Machhan and Parkash Chand have also been
convicted for the offence under Section 5(2) of the Prevention of Corruption Act, 1947 and
sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 500 each. In
default of payment of fine, each of them has been directed to undergo imprisonment for a further
period of two months. The substantive sentence imposed on each of the four Appellants was
ordered to run concurrently.
The trial Court has heavily relied upon the statement of PW 1 Shri P.C. Panwar, the then District
Horticulture Officer. This witness was appointed as Local Commissioner by the Enquiry
Commission. He had inspected the orchard of the father of the Appellant Mohinder Singh. There
were 247 apple trees in the said orchard. According to his assessment the optimum produce of
apples in the orchard could have been 292.37 Qtls. Against this maximum optimum produce of
292 37 Qtls., the Appellant Mohinder Singh had sold 595 Qtls of apples to the procurement and
destruction party. PW 1 Was- examined as an expert.
There is no denying that the evidence of an expert is admissible in evidence under Section 45 of
the Evidence Act.
As a result, the present appeal is allowed. The conviction and sentence imposed upon the four
Appellants by the learned Special Judge are set aside and they are acquitted of the offences.
Their bail bonds shall stand cancelled and discharged. The amount of fine, if already deposited
shall be refunded to the Appellants, as per law.
2. Second judgment
a. Name of the Judgment – Banoth Krishna v. Banoth Vimla & Another.
b. Citation - LQ 2014 HC 31153
c. Date of Judgment – 4th September 2014
d. Bench Name – HON'BLE DR. JUSTICE B. SIVA SANKARA RAO
e. Summary
The revision petitioner is the husband of the revision 1st respondent and father of the revision-
2nd respondent as per their claim in the M.C. No.7 of 2013 against the revision petitioner who
disputes the same. It is in the M.C.No.7 of 2013 pending trial, the M.C. Petitioners filed the
Crl.M.P.No.279 of 2013 under Section 45 of the Indian Evidence Act for D.N.A test to the
M.C.-2nd petitioner and M.C-respondent on paternity dispute. The same was allowed. Impgning
the same, the M.C-respondent filed this revision petition against said order dated dated
22.04.2014 passed by the Principal Judicial magistrate of the First Class, Kothagudem in
Crl.M.P.No.279 of 2013 in M.C. No.7 of 2013 allowing the petition filed under Section 45 of
Indian Evidence Act with a direction to undergo DNA test for paternity test before A.P.F.S.L,
Hyderabad.
Heard both sides at length and perused the material on record including the evidence of P.W-1
and the copies of Exs.A-1 to A-11 and Exs.R-1 to R-11 marked in the maintenance case besides
the petition and counter in the maintenance case as well as the Section 45 Evidence Act petition.
Among the Exs.A-1 to A-11, Exs.A-1 to A-8 are the photos and negatives, others are the list of
marriage gifts, lagna patrika and the study certificate of the child Ganesh, showing B.Krishna
who is husband of her and father of M.C-2nd Petitioner. Among Exs.R-1 to R-11 wedding
invitation of B.Krishna (Respondent) with Shanti, Singareni Collieries Medical attendance book
and certificate of him, his wife, parents and 2 children and not showing the M.C-petitioners
names so also the household supply card, study certificate of Banoth Ganesh as son of Kishan,
Indiramma pension scheme statement of names in voters lists.
The other decision referred by this Court in Baridi Vanajakshmi V. Buridi Venkata Satya Varaha
Prasad Gangadhar Rao (2010(4) ALT 441)in a matrimonial dispute under Section 13 of Hindu
marriage Act, application filed for DNA examination under Section 45 of Indian Evidence Act
on right of privacy held as not absolute, when medical examination may remove
misunderstanding between parties.
Having regard to the above, with reference to the oral evidence on record, the DNA test helps as
a sold proof on truth of the dispute of paternity. When such is the case, the lower Court is right in
allowing the application and as such for this Court while sitting in revision, there is nothing to
interfere. Accordingly, the point No.1 for consideration is answered. In the result, the revision
petition is dismissed. As a sequel the miscellaneous petitions pending if any stand closed.
3. Second judgment
a. Name of the Judgment – Ramesh Mardia and Ors. v. Koxan India and Ors.
b. Citation - (2018) 73 PTC 102 (DEL)
c. Date of Judgment – 20th November 2017
d. Bench Name – HON'BLE JUSTICE GITA MITTAL ACTG. C.J.
e. Summary
The facts giving rise to the suit are concerned, we may extract herein the order dated 21.02.2017
passed by the learned Single Judge which notes the position hereunder:
Mr. Ramesh Mardia was the proprietor of the registered trademark 'Mardia Cables'. He on 1st
March, 2002 assigned the same to M/s. Kevin Mardia Cab Industries', name whereof has since
been changed to 'Koxan India'. This much is not in dispute. Mr. Ramesh Mardia on 24th
December, 2002 applied for registration of 'Mardia Cables' and which registration was granted
unopposed on 17th March, 2005. This much is also not in dispute. It is the case of Mr. Ramesh
Mardia that Koxan India on 13th May, 2005 re-assigned the trademark to Mr. Ramesh Mardia
and which assignment was got recorded by Mr. Ramesh Mardia with the Registrar of
Trademarks on 14th June, 2007. Koxan India disputes such reassignment. There is no interim
order in the counter suits in which common issues have been framed and recording of evidence is
yet to commence.
The applications filed for interim relief in both the suits were dismissed on 6th March, 2009 and
both the parties continued to use the mark 'Mardia Cables' with respect to electrical cables."
There was an order by the Registrar dated 14.06.2007, which was an ex-parte order and the
applicant herein challenged that order invoking section 45. The appeal was allowed by this
Board on 30.06.2011. For the present, matter on hand, it is not necessary for us to go into the
genuineness of the re-assignment deed or whether the applicant was only a distributor or the
cables and wires manufactured by the respondent. Even if the reassignment deed was genuine
which will be decided by the Hon'ble Delhi High Court, the Re-assignment deed was executed
only in 2005. By the assignment deed dated 01.03.2002 which the respondent affirms and he
cannot do otherwise since it is only then the re-assignment will come into the picture, the
respondent had parted with his rights in respect of the trade mark and had undertaken not to
adopt a mark identical to the mark assigned nor to adopt the mark which was likely to confuse or
deceive. Before us, Mr. A.K. Verma, learned counsel for the respondent has placed reliance on
Midas Hygiene Industries P. Ltd. v. Sudhir Bhatia (2004) 3 SCC 90 to contend that mere delay in
bringing the action is not sufficient to defeat grant of injunction of trademark. It is also submitted
that the grant of injunction also becomes necessary if it prima facie appears that the adoption of
the mark was itself dishonest. It is noteworthy that in Midas Hygiene Industries P. Ltd. (supra)
the injunction granted by the learned Single Judge had been vacated by the Division Bench
merely on the ground of delay and laches.
III. Section 46, The Evidence Act, 1872
Facts bearing upon opinions of experts. –– Facts, not otherwise relevant, are relevant
if they support or are inconsistent with the opinions of experts, when such opinions are
relevant.
(a) The question is, whether A was poisoned by a certain poison. The fact that other
persons, who were poisoned by that person, exhibited certain symptoms which experts
affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall.
The fact that other harbours similarly situated in other respects, but where there were no
such sea-walls, began to be obstructed at about the same time, is relevant. COMMENTS
tc "COMMENTS" Admissibility The science of identification of footprints is not a fully
developed science and therefore if in a given case, evidence relating to the same is found
satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit
already arrived at on the basis of other evidence; Mohd. Aman v. State of Rajasthan,
(1997) 4 Supreme 635.
1. First judgment
a. Name of the Judgment – Akula Tirupathi v. The Commissioner, Prohibtion & Excise,
Hyderabad.
b. Citation - LQ 2003 HC 3666
c. Date of Judgment – 22nd January 2003.
d. Bench Name – HON'BLE MR. JUSTICE V.V.S. RAO
e. Summary
The petitioner is owner of an Auto Rickshaw bearing No. AP-13-T-5966. On 18-10-1995, he
alleged, when he was having a cup of tea at Mandamarri village, two lady passengers sat in the
auto and requested him to take to Mandamarri town/colony. The auto was stopped by the fourth
respondent at Mandamarri Cross Roads and a search was conducted. The fourth respondent
found that the two lady passengers were carrying five cans of illicit liquor, four cans carrying 5
ltrs. each and one can carrying 10 ltrs. The illicit liquor and the auto were seized and a
panchanama was conducted. An offence being Crime No.26 of 1995-96 on the file of the Judicial
I Class Magistrate, Luxettipet was registered under Section 34 of the A.P. Excise Act, 1968 ('the
Act'). The vehicle was produced before the Deputy Commissioner of Prohibition & Excise, the
third respondent herein. The petitioner filed a writ petition being W.P.No.24388 of 1995 seeking
release of the auto rickshaw. This Court, by an order dated 31-5-1995 disposed of the same
directing the Deputy Commissioner to release the auto on the petitioner furnishing a bank
guarantee for an amount of Rs.5,000/-. Accordingly, the vehicle was released to him on 15-4-
1996.
The third respondent passed an order on 30-5-1996 under Section 46(2) of the Act confiscating
the auto rickshaw. Feeling aggrieved by the same, the petitioner preferred an appeal to the first
respondent, who, by an order dated 13-1-1999 confirmed the order of the third respondent. As a
consequence thereof, a notice of public auction dated 19-7-1999 was published in Vaartha
newspaper for conducting auction of various vehicles seized by the Excise authorities including
the vehicle of the petitioner. Challenging the orders of the Commissioner and the auction notice,
the present writ petition is filed. Sri S.Chandraiah, learned counsel for the petitioner, submits that
power inheres in the Deputy Commissioner under sub-section (6) of Section 46 of the Act to
receive evidence, to summon witnesses and documents. Therefore, without recording any
evidence, an order of confiscation cannot be passed. Secondly, he would contend that the
criminal court is competent to order release of the crime property to the accused when the
accused is acquitted. Whereas under Section 46-B of the Act, the result of the criminal
proceedings either acquittal or conviction is of no consequence to the proceedings under Section
46 of the Act, and in that view of the matter, the procedure is illegal. He would also submit that
the Deputy Commissioner (third respondent) ought to have waited till the disposal of the
criminal case.
He, however, does not dispute that the criminal case is still pending and not ended in acquittal.
He also submits that the confiscation order was passed by the original authority without issuing
notice. He also placed reliance on a Division Bench judgment of this Court in Shaik Gulam
Rasool v. Govt. of A.P.1 and also a judgment of a Full Bench in V.Narayana Rao v. State of
A.P.2 a counter affidavit is filed denying the various averments made in the affidavit of the
petitioner. It is also stated that a show cause notice was issued on 15-4-1996 by the Deputy
Commissioner and though the petitioner received the same did not offer any explanation. The
petitioner has not filed any reply affidavit denying the same. Therefore, the submission that show
cause notice was not issued and order was passed behind his back cannot be countenanced.
The order passed by the appellate authority, having considered various questions raised, does not
suffer from any infirmity, much less grave error apparent on the face of the record. Further, the
authorities relied on by the learned counsel for the petitioner lay down the proposition that the
power of confiscation being appropriatory in nature, must be exercised only in case where mens
rea is proved. In this case, though the petitioner received show cause notice, he did not file
explanation and, therefore, he failed to discharge the burden on him that he is not responsible for
carrying the illicitly distilled liquor in his auto rickshaw. Therefore, the two authorities relied on
by the learned counsel for the petitioner have no application to the facts of this case.
For the above reasons, the writ petition fails and is accordingly dismissed. There shall be no
order as to costs.
2. Second judgment
a. Name of the Judgment – Nyami Riba v. Doi Riba
b. Citation - LQ 2009 HC 23405
c. Date of Judgment – 9th June 2009
d. Bench Name – HON'BLE MR. JUSTICE P.K. MUSAHARY
e. Summary
Heard Mr. R. Saikia, learned counsel for the petitioner and also heard Mr. K. Ete. Learned
counsel appearing for sole respondent.
This application has been made under Section 50 of the Assam Frontier (Administration of
Justice) Regulation, 1945, read with Section 115 of Code of Civil Procedure, 1908, and Article
227 of the Constitution of India for quashing the order dated 21. 08. 2008 passed by the Court of
Fast Track Court (FTC), Basar, in BSR/ca-66/07.
The brief facts of the case are that the petitioner purchased a plot of land and a stream called
'burre' from one Sri Tamen Tacha who has migrated to Dekapam from Disi village in the year
1967 and when the respondent claimed to be owner of the same, the petitioner filed a complaint
against the respondent and accordingly, a Keba was conducted on 06. 02. 2007 wherein, the
Keba members after hearing all the witnesses, decided the matter in favour of the petitioner. The
respondent, being aggrieved by the Keba decision dated 06. 02. 2007 preferred an appeal before
the Addl. Deputy Commissioner, Basar and the same was transferred to Fast Track Court, Basar,
for disposal. The same was registered as Case No. BSR/ca-66/07. The learned FTC without
complying with the procedure under Section 38 (1) read with Section 46 (3) of the Assam
Frontier (Administration of Justice) Regulation, 1945, (hereinafter referred to as Regulation
only), took-up the appeal de novo and passed the impugned order dated 21. 08. 2008 for listing
the matter on 16. 09. 2008 for plaintiff's evidence.
Mr. Saikia, learned counsel for the petitioner, submits that the aforesaid impugned order has
been passed in violation of Order 41, Rule 27 of Code of Civil Procedure, 1908 and Section 46
of the said Regulation. It is further stated that the petitioner filed an Objection Petition on 09. 09.
2008 before the learned FTC, Basar, against the impugned order dated 21. 08. 2008 but the same
was not considered and disposed of and therefore, the petitioner has approached this Court for
setting aside the impugned order dated 21. 08. 2008 and/or for passing appropriate direction to
dispose of the Objection Petition dated 09. 09. 2008, aforesaid.
Mr. Ete, learned counsel for the sole respondent submits that the appellate Court is authorized
under the provisions of Rule 46 (3) of the Regulation to record evidence if it finds grounds to
doubt the justice of the decision and it shall try the case de novo or refer the same to the
Panchayat. The appellate Court has to take a decision after receipt of the Appeal as to whether it
should proceed to try the case de novo or refer to the Panchayat. It is because of the reason that
the proceeding including any evidence taken by Keba, must be recorded . The proceeding of the
Keba is more or less a proceeding of an amicable settlement. It is also submitted that the power
of appellate Court is also provided under Section 107 of Code of Civil Procedure, 1908 and
therefore, once the appellate Court decides to try the matter de novo, it may record evidence for
the purpose of arriving at a right decision and adjudication thereof.
I have considered the submissions made by the learned counsel appearing for the parties. From
the impugned order dated 21. 08. 2008, it is found that the learned FTC, Basar, exercising
jurisdiction under Section 46 (3) of the Regulation, has not decided as to whether it would
choose either of the options, namely, to try the matter de novo itself or to refer the matter to the
Panchayat. Without opting for either of the options, the learned trial Court has fixed the matter
for plaintiff's evidence. In this respect, it will be appropriate to quote Section 46 (3) of the
aforesaid Regulation, as follows :
"46. (3) The appellate court shall, if necessary, examine the parties, and, if the decision appears
to be just, shall affirm and enforce the decision as its own. If the appellate court sees grounds to
doubt the justice of the decision, it shall try the case de novo or refer to a Panchayat; in any case
so referred, the provisions of Section 38 shall apply as if the parties had agreed to submit to
arbitration. "
There is no doubt that the learned FTC, Basar, is vested with power to take-up the appeal and try
itself de novo but it has to first take the decision and such decision must be recorded. There is
also no dispute as regards the power of the appellate Court to refer the matter to a Panchayat if
the parties agree to submit to arbitration. There is no material before this Court to that effect also.
In view of the aforesaid provisions of law, I find that the impugned order dated 21. 08. 2008 has
been passed without complying with the provision under Section 46 (3) of the Regulation and as
such, the same is liable to be quashed and accordingly, the same is quashed. The matter is
remanded back to the learned FTC, Basar, for passing necessary order (s) in compliance with the
provisions 46 (3) of the Regulation. The petition stands disposed of accordingly.
